Opinion
No. 05-08-00333-CR
Opinion Filed December 10, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 291st Judicial District Court Dallas County, Texas, Trial Court Cause No. F08-00005-WU.
Before Justices MOSELEY, RICHTER, and FRANCIS.
OPINION
A jury convicted appellant of injury to a child under fourteen years of age and assessed punishment at 40 years' imprisonment. In two issues on appeal, appellant asserts he suffered egregious harm by the charge submitted to the jury during the guilt/innocence phase and the evidence was factually insufficient to sustain his conviction. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Sufficiency of the Evidence
Applicable Law
In his second issue, appellant asserts the evidence was factually insufficient to support his conviction. We measure the sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge for the case. Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008) (legal sufficiency); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (evidentiary sufficiency generally); Wooley v. State, 273 S.W.3d 260, 268 (Tex. Crim. App. 2008) (factual sufficiency). Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001); Malik, 953 S.W.2d at 240. The law as authorized by the indictment means the statutory elements of the charged offense as modified by the charging instrument. See Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, — ___ U.S. ___, 129 S.Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the factfinder's determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the factfinder's determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414-15, 417. To reverse under this ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, though legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417. As limited by the indictment, the State had to prove that appellant intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly or recklessly by omission, caused serious bodily injury, serious mental deficiency, impairment or injury, or bodily injury to the child. See Tex. Penal Code Ann. § 22.04(a) (1) (Vernon Supp. 2009-2010).Evidence Presented
Bionca Barrett, the mother of the deceased child JC, lived with appellant. Three months prior to the date of the offense, there was an incident that involved appellant hitting JC with a belt. When this occurred, Barrett took JC to her mother's house and called the police. The police suggested that Barrett take JC to the hospital to be examined, but Barrett declined to do so. Barrett remained at her mother's house for about a week until appellant apologized and she moved back in with him. On the day of the offense, appellant cooked breakfast. Although JC usually ate in his room, appellant wanted JC to eat next to him in the living room. JC complied, but did not look happy. Barrett noticed that JC seemed rather sad and acted unusual that day, but she did not observe any bruises on him. Appellant drove Barrett to work and JC accompanied them. While Barrett was at work, appellant called her to tell her that something was wrong with JC. Specifically, appellant reported that JC was lying on the ground shaking, his eyes were rolling back in his head, he was throwing up, and his fingers were getting stiff. Barrett left work and went to the hospital. When Barrett asked appellant again what had happened, appellant told her he heard a loud boom in the bedroom and found JC on the ground shaking and vomiting out of his nose. When Barrett asked appellant how JC was lying on the floor, appellant could not say. Appellant said he picked JC up, took him to the living room couch, and placed him on his side. He also claimed he stuck his finger down JC's throat to see if he was choking on anything. While at the hospital, Barrett noticed a bruise on JC's arm. Barrett stayed at the hospital for 2-3 nights until JC died. Jonathan Cunningham was the child's father. Cunningham stated that when JC spent the night with him, JC would wake up 2-3 times a night as if he were having a nightmare screaming, "no, stop." When Cunningham would drive JC back to Barrett's house, JC would grab the door handle of the car and scream "no, no, no." On one such occasion, JC locked himself in the car. Cunningham saw JC at the hospital and noticed bruising on both of JC's arms. James Ayres testified that he and his wife babysat for JC about five days a week. Appellant usually picked JC up, and whenever he would arrive, JC would run and jump into the bed with Ayres. When appellant took Barrett to work on the day of the incident, Ayres observed JC walking to the car. According to Ayres, JC did not appear to have any trouble walking. Dallas firefighter William Ralston testified that he was among the first to respond to the scene. When he arrived at the apartment, appellant pointed to the couch where JC was lying. JC was convulsing and had blood-tinted saliva coming from his mouth. Ralston testified that this is normal for a person having a seizure. Appellant told Ralston that he heard a thump in the bedroom and walked in to find JC on the floor. Appellant said he thought JC might have been jumping on the bed. Ralston went to the bedroom to see how high the bed was, and observed that it was relatively low to the floor. Ralston did not see any blood or vomit on the floor in the bedroom; he only found blood and vomit on the couch. JC was posturing, which usually means the person is suffering from a head injury. Appellant rode in the ambulance with JC, and stated that he had punished JC and sent him to his room. Appellant said he heard a thud, and assumed JC fell from the bed to the floor. Dr. Bradley Weprin, a pediatric neurosurgeon at Children's Medical Center, was called to the emergency room to evaluate JC. Dr. Weprin was told that JC was comatose and near death; he had a large blood clot on the surface of his brain which had significant swelling. Dr. Weprin did not believe that JC's injuries were accidental, but rather the result of having been abused. He testified that he had never seen subdural bleeding similar to the type JC suffered that was the result of an accident, unless it was due to a high-speed motor collision. Dr. Weprin did not notice if there was a fracture in the skull because he was focused on trying to save JC's life, but testified that it was possible to have a traumatic brain injury without a skull fracture because of indirect forces applied to the brain. Dr. Weprin stated that JC's symptoms were consistent with a child being shaken violently and thrown up against a bed. The symptoms, such as seizure, vomiting, and lapsing into a coma, could appear immediately. Dr. Mathew Cox was also called to the hospital to evaluate JC. Dr. Cox is a pediatrician whose role is to evaluate injured children to determine if there is a clear explanation for the injuries or if the injuries are more consistent with abuse. Dr. Cox opined that JC's injuries were not accidental. By the time Dr. Cox arrived at the hospital, JC had already undergone surgery. Other than surgical markings, Dr. Cox observed that there were four or five distinct bruises on JC's outer right arm, a few bruises near the elbow on the left arm, and a few bruises on the left wrist. There was also a bruise over the front of JC's hip. A CAT scan showed that JC had abnormal brain swelling and abnormal brain tissue, as well as a collection of blood that exerted pressure on JC's brain. Dr. Cox testified that JC suffered subdural hemorrhaging. Dr. Cox had never seen a lethal subdural hemorrhage that was the result of an accident from a short fall; he had only seen such an injury when a child fell from a third story window to the concrete below. Dr. Cox was presented with a hypothetical in which a thirty-five pound three-year-old boy jumping as high as he could on a toddler bed about one-and-a-half feet off the floor, loses his balance and falls forward to hit his head on the floor. Dr. Cox opined that the injuries resulting from such a fall would not be of the type JC suffered. A child in such a situation would likely have a lump on the head, or even a skull fracture if he hit the right spot, but would not have the diffused brain injuries that JC had. Dr. Cox could not identify the deadly weapon that was used to inflict JC's injuries, but stated that hands could be a deadly weapon. Dr. Cox's best explanation was that JC suffered some type of violent shaking, likely with some impact onto a soft surface, such as a comforter, mattress, or sofa. Dr. Cox further stated that most children with this type of injury do not suffer significant neck injury. Kim Mayfield, a detective with the child abuse division of the Dallas police department also testified. Mayfield received a call on the day of the offense, and she and her partner went to the hospital. When she arrived at the hospital, Mayfield spoke with Dr. Cox, who had already determined that the injury was an inflicted injury. Mayfield's initial investigation indicated that appellant was the individual who had care, custody and control of JC. While at the hospital, Mayfield and her partner took a statement from appellant and Barrett. At trial, appellant's statement was admitted into evidence over appellant's objection. In the statement, appellant said that he heard a loud noise that caused him to go to JC's room to check on him. He found JC throwing up from his mouth and nose, so he moved JC to the living room couch. During the investigation, Mayfield took pictures of the apartment, including the toddler bed and the floor next to the bed. There was no vomit on the floor area in the bedroom. The couch was the only place blood or vomit was found. James Michael Rollins testified he met appellant while both were incarcerated. One evening after appellant had been talking on the phone, appellant approached the other inmates. Appellant was "very angry" and stated that he "kicked the shit out of that child" but did not injure him. According to appellant, he had disciplined JC as he disciplined his other children. JC's grandmother, Terry Cunningham, also testified. Cunningham stated that when JC spent the night with her, he would awaken with nightmares and need to be reassured as to where he was and who he was with. When she would return him to his home, JC would recognize where they were driving and would scream and cry, begging not to be taken back. Pamela Scott, JC's grandmother's best friend, testified about an occasion when she was in the car with Cunningham as they returned JC to his home. Scott recalled that as they neared the apartment, JC began crying and screaming "Daddy, no Daddy, no." JC then locked the door and held on to the car seat, kicking and screaming. After the State rested, appellant called Dr. Mark Shuman to testify. Dr. Shuman is an associate medical examiner who reviewed appellant's statement that he found JC in his room on the floor. Dr. Shuman opined that it is possible that a child of JC's age could have caused injury to himself, perhaps by falling from a piece of furniture. Dr. Shuman testified that a fall of more than three feet, possibly less, is potentially lethal and that if a person did not know that short falls can cause such injuries, the diagnosis would never be made. Dr. Shuman opined that the cause of death in this case was a blunt head injury. Although he was aware of an area of medical science that believed that shaking can cause such injuries, he did not believe that JC's injury was caused by shaking alone. Dr. Shuman stated that an adult male cannot shake a thirty-pound child that hard and the injuries were not consistent with shaken baby syndrome. He further stated that he would expect to see a child with devastating neck injuries as a result of being shaken hard. Dr. Shuman also offered that it was possible that JC's injury was caused by a kick. Appellant's father also testified. He stated that appellant and JC had a good relationship and he never observed anything in the interaction between appellant and JC that caused him any concern.Discussion
Appellant contends the evidence is factually insufficient because there was conflicting testimony concerning how the child's traumatic head injury could have occurred. Dr. Weprin and Dr. Cox both testified that the injuries were "non-accidental," while Dr. Shuman opined that the injury could have been self inflicted. The existence of contrary evidence, however, is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.-Dallas 2006, pet. ref'd). It was the jury's function to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). As the Goodman court observed, "just as a fact finder . . . is not required to believe either the Cretan Liar or any one of the boy scouts, so the jury [is] not required to credit [alternative] explanations, regardless of how reasonable they may be." Goodman, 186 S.W.3d at 655. Considering the evidence in a neutral light, we conclude the jury's finding of guilt was not manifestly unjust and the evidence is factually sufficient to support appellant's conviction. See Watson, 204 S.W.3d at 414. Appellant's second issue is overruled. Charge Error In his first issue, appellant contends the jury charge was fundamentally defective. First, appellant contends the charge was defective because it failed to restrict the definitions of intentionally and knowingly as required for result-oriented offenses. Second, appellant asserts that the application paragraph allowed the jury to convict on a basis not alleged in the indictment. We analyze jury charge error according to the two-step test articulated in Almanza v. State, 686 S.W.2d 157, 171-74 (Tex. Crim. App. 1984). Our first task is to determine if error exists in the charge. Next, if error does exist, we must determine whether the defendant was harmed sufficiently to require reversal. Id. at 171. Our harm analysis varies depending upon whether there was an objection to the alleged error at trial. Id. Here, appellant stated that he had "no objection" to the charge, and such an affirmative denial of objection is deemed the equivalent of a failure to object. Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004). Although an appellant may challenge unobjected-to charge error on appeal, he may not obtain a reversal unless it resulted in egregious harm. Id.The Definitions in the Charge
The penal code delineates three "conduct elements" that may be involved in an offense: (1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct. See Tex. Penal Code Ann. § 6.03 (Vernon 2003); Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994). Any of the four culpable mental states defined in section 6.03 of the penal code may apply to a "result of conduct" offense. A person may consciously desire the result (intentional conduct); be aware that his conduct is reasonably certain to cause the result (knowing conduct); be aware of but consciously disregard a substantial and unjustifiable risk that the result will occur (reckless conduct); or fail to perceive a substantial and unjustifiable risk, of which he ought to be aware, that the result will occur (criminally negligent conduct). See Lugo-Lugo v. State, 650 S.W.2d 72, 87 (Tex. Crim. App. 1983). When all four mental states have been prescribed by the Legislature in defining an offense, it is a strong indication that the offense is a "specific result" type of crime. Alvarado v. State, 704 S.W.2d 36, 39 (Tex. Crim. App. 1985). A person commits the offense of injury to a child if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly or recklessly by omission, causes to a child, elderly individual, or disabled individual, serious bodily injury, serious mental deficiency, impairment or injury, or bodily injury. Tex. Penal Code Ann. § 22.04(a) (1) (Vernon Supp. 2009-2010). Injury to a child is a result-oriented crime because the statute penalizes the result of the conduct that occurred. Id; Schultz v. State, 923 S.W.2d 1, 4 (Tex. Crim. App. 1996) (comparing injury to a child with child abandonment); Beggs v. State, 597 S.W.2d 375, 377 (Tex. Crim. App. 1980) (holding injury to a child is result — oriented crime); Haggins v. State, 785 S.W.2d 827, 828 (Tex. Crim. App. 1990) (stating mental state criminalized in injury to a child statute is the state of mind which contemplates the prohibited result). A court errs in failing to limit the definitions in the charge to the conduct element(s) of the offense to which they apply. See Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995); Underwood v. State, 176 S.W.3d 635, 642 (Tex. App.-El Paso 2005, pet. ref'd). If an offense is a "result-oriented" offense, the charge should contain statutory definitions of "intentionally" or "knowingly" that are limited to the specific conduct element required for the offense. Skillern v. State, 890 S.W.2d 849, 869 (Tex. App.-Austin 1994, pet. denied). Here, the trial court defined the terms intentionally and knowingly as they related to both the nature of the conduct and the result of the conduct. The charge stated:A person acts intentionally or with intent with respect to the nature of his conduct or to a result when it is his conscious objective or desire to engage in the conduct or cause the result.
A person acts knowingly or with knowledge with respect to the nature of his conduct or the circumstances surrounding his conduct when he is aware of the nature of his conduct or that circumstances exist. A person acts knowingly or with knowledge with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.Because injury to a child is a result-oriented offense and the trial court did not limit the definitions to the specific conduct elements for the offense, we conclude the charge was erroneous. But our inquiry does not end here. Having determined that the jury charge was erroneous, we next consider whether the error caused egregious harm. See Bluitt, 137 S.W.3d at 51. We must decide whether the error created such harm that appellant did not have a fair and impartial trial. Almanza, 686 S.W.2d at 171. "The actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole." Id. When determining the harm suffered from the inclusion of improper conduct elements in the definitions of culpable mental states, we may "consider the degree, if any, to which the culpable mental states were limited by the application portions of the jury charge." Patrick, 906 S.W. 2d at 492. The application paragraph in the present case did not employ the expansive language contained in the definitions section of the charge, but instead pointed the jury to the proper issue involved in a result-oriented offense. See Delgado v. State, 944 S.W.2d 497, 498 (Tex. App.-Houston [14th Dist.] 1997, pet. ref'd). Specifically, the jury was instructed that they must believe that appellant "knowingly and intentionally caused serious bodily injury" to the child. In addition, the State did not emphasize the "nature of conduct" language from the charge in its argument. Consequently, we conclude that appellant did not suffer egregious harm due to the erroneous definitions in the charge, nor was he denied a fair trial.